SUPREME COURT.

Wanganui Chronicle, Volume XXXVIII, Issue 12120, 11 October 1894, Page 2

SUPREME COURT.

♦- Wednesday, October 10th. (Beforo Hi 3 Honor Chief Justice Sir James Prendergast). CIVIL BUSINESS. NATIVE APPEAL CABE. Between Freeman Rayney Jackson, complainant, of the Wanganui River Trust Board, and Ria Pona and Rita te Rahni, defendants. The hearing of this case was continued Ria Poma and Jackson (two native witnesses) were called on behalf of the natives, and after their evidence Mr Treadwell addressod the Cou;fc on behalf of the appellants, and Mr Birnicoat for the respondents, His Honor said he could not believe the evidence of the appellants, and dismissed tbe appeal with £& 8s costs. the horowhenua case. This was an action brought between Meiha Keepa te Rangihiwinui, Haia Taneki, Noa te Whatamahoe Rawinia, Taneki te Rangi Mairehu, Rawera te Whata, Makere te Rou, Kerehi Mitiwha, and Ngariki te Raorao, serving on behalf of themselves and others, and all other persons in the same interest, plaintiffs, and Warena to Hakeke, otherwise called Warena Hunia, defendant. Mr Edwards, of Wellington, appeared for the plaintiffs, Mr Barnicoat for the defendant, and Mr Fitzherbert for third parties. Summarised, the plaintiffs in their claim say (1) That on the 10th of April, 1893, an order was made by the Native land Court under the provisions of " The Native Land A ot, 1865," and "Tho Native Land Act, 1867," for the issue in favour of the plaintiff, Meiha Keepa te Rangihiwinui, of a certificate of title under the 17th section of the Act of 1867, for all that parcel of land at Horowhenua, in the district of Manawatu, in the Provincial Distriot of Wellington, containing by admeasurement 62,460 acres more or less; (2) that on the same day an order was made by the Native Land Court, in pursuance of the same Act, for tho registration in the said Court of the names of 148 aboriginal natives, including the plaintiffs and defendants in the said Court, as the owners of the land, and that the said names were registered j the finding of the Court npon which the orders mentioned were made was that " Muaupoko" were entitled to the land; (3) that on the 27tb of June, 1881, a certificate of title under the provisions of the said 17th section of the Act of 1867 was, pursuant to the orders, issued in favour of Raagihiwinui for the said parcel of land ; (4) that in November, 1886, the Native Land Court sat at Palmerston North for the purpose of partitioning the Horowhenna land upon the application ot Rangihiwinui ; (6) that tho Court in the said proceedings purported to act under the Native Land Court Acts, '*Tho Native Land Court Act, 1880," and the Native Land Division Act, 1883."; (6) that the Court made an order for the issue to Rangihiwinui of a certificate of title nnder the Land Transfer Act, of a portion of tbe land called Horowhenua No. 1, containing 76 acres 2 roods 26 perches, and also of another portion, Horowhenna No. 2, containing 3988 aores 2 roods 32 perches ; (7) the first of the orders mentioned in the last paragraph was made in order that a sale of the parcels, with the consent of all persons interested, might be carried into effect respectively to the Manawatu Railway Company (whose railway is in part built upon No, 1) and Her Majesty the Qneen ; (8) that the Court also made an order for the issue of a certificate of title to the portion called Horowhenna No. 9, containing 1200 acres ; (9) after making the orders mentioned in paragraphs 6, 7, and 8 the Court adjourned until lho following Saturday, 27th November,lßß6 j (10) on27tb November the judge in conduct of the proceedings attended for the purpose of continuing the proceedings, but no assessor attended, and the judge purported to adjourn the procpedings to the following Wedneßday,lst December; (11) the plaintiffs allege that the proceedings lapsed on the 27th November, and that it was not within the power of the judge to adjourn the proceedings; (12) on Ist December the Court, without further notice to the parties interested, purported to continue the partition of the land, and amongst othor orders made an order for the issue to the piaintiffs, Rangihiwinui and Hekeke, of a certificate of title to tbe portion called Horowhenua No. 2, containing 15,207 acres; (13) the Court, in making the several orders for. partition of the block, did not exercise any judicial discretion or make any judicial inquiry into the matters of the orders, bat merely attempted to record arrangements that had been made outside the Court by parsons interested in tlie lands; (14) several of the parcels of land woro awarded to persons named in the orders upon trusts, which were stated in the Conrt at the tim 9 [here follow instances of the trusts referred to] ; (15) all tho persons named in the certificate of title received some portion of tho block in their own right ; (16) all the portions of the block which were severally allotted to the members of the Mu.upoko tribe were bush, and upon no part of the lands allotted did any members of the tribe actually reside ; (17) after piovidingfor the trusts referred to,' and after an allotment in severalty to each member of tbe tribe, there remained the portion of the block now known as Horowhenua No. 11 ; (18) upon this portion of the block are situated all the oui. tivations of the tribe, their houses, improvements, eel fisheries, and burying places, where members of the tribe have resided for centuries and still continue to reside; (19) prior to the subdivision it was agreed between tho plaintiff Rangihiwinui, the principal chief of the Muaupoko tribe, and the sole person named in tho certificate of title for the Horowhenna Block, and the plaintiffs and defendant and other msmbeis ~>i the tribe, that tbe portion known as Horowhenua No. 2 should be kept and r etainod undivided fbr the use and occupation of the siid tribe, ond held in the names of trustee, for the tribe ; (20) it was proposed by Rangihiwinui and agreed by the membftrs ef tho tribe' that he should be trustee; (21) there had, however, been long standing differences between Rangihiwinui and the Hunia family re the block, and' Wiribana Hunia, brother of the defendant, proposed that the name of the defendant Hoakeke should be included in the sub-division as joint trustee with Rangihiwinui, and to this the other members of the tribe present in the Court assented, and the order was made accordingly; (22) there was not at the time of the sub-division any plan of the block as sub-divided ; the proposed sub-divisions being roughly indicated upon a tracing of the whole block ani the proposed sub-divisions we're roughly, but not accurately, described in the applications for sub-division orders ; (23) after the sub-divisions, orders had boon made, a survey was made and a proper plan proposed ; it was then found that Horowhenua No, 11 contained 14,975 acres, and not 15,207 acres as stated ' in- tho application and the order; (24) the provisions of sections 26-32 of "The Native Land Court Act, 1885," were' cot complied with in respect to the survey ; (25) as the result of the proceedings of the Court, land transfer certificates of titles to the various parcgls of }an_ have been (soiiod without disclosing t_'p trpstg upon which such of the said lands as were held in trust were held, as well qs thoso mentioned in paragraph 14, hereof as tho Eaid parcel of land now called Horowhenua 11 ; (26) the plaintiffs and also tho other numbers of the Muaupoko tribe believed and understood that their interests in Horouhenna No. 2. were held by Rangihiwinui and the defendant in trust for others, and although the trusts wore disclosed to the Court at the time of making the orders, no warning was given to the plaintiffs or to any members of the tribe that the effect of the orders made by the Court would be to divest the lands from the plaintiffs and members of ( the tribe, or that it was necessary or desirable that the trusts under which the lands wero held should in any way be protected; (27) in February, 1890, a sitting of the Court was held at Palmerston North for the purpose of further partitioning the parcel known as Horowhenua No. 2, between Rangihiwinui and JJakeke, otherwise called Warena Hunia; (28) Both the plaintiff and defendant were represented by ceunsel; Rangihiwinui insisted, as he has always insisted, 'that tho lands were held by himself and the defendant, not' in their own rights ias owners, but as trustees of the tribe ;' (29) notwithstanding that the trust in the _-»_-_■_-_-_-_-_-_-_-_-_-_-_-____■_■■_!

lands called Horowhenua No. 2, was insisted upon by Rangihiwinui, and admitted by the defendant, Hakeko, the Court proceeded to partition the lands as between the plaintiff and defendant; and after causing a valuation divided the land into two blocks, called Horouhenua No. 2a, valued at -313,292, and Horonhenua No. 2n, valued at -512,24., and awarded No. 2a to Rangihiwinui, and No. 2b to Hakeke; (80) Rangihiwinui being dissatisfied with the decision, applied to tho Chief Judge for a re-hearing, which was ordered accordingly ; (31) the re-hearing was heard in May, 1891, before Judges Mair and Scannell, and Rangihiwinui again insisted upon the trust in the lands; (32) the said judges declined to consider tho trust, believing that they had no power to do so, and made an order, dated 10th April, 1890, confirming the order mentioned in paragraph 29 [here follows a copy of the judgment delivered on there-hearing]; (33) Rangihiwinui and other members of the Muaupoko tribe presented a petition to the House of Representatives in the session in 1890; (84) the Native Affairs Committee, to which the petition vras referred, made a report; (36) in the session of 1891 Rangihiwinui and others again petitioned the House to the same effect, and a report to the same effect was made by the Native Aifairs Committee; (36) in the session of 1893 Rangihiwinui and others again petitioned Parliament, with the same result ; (37) in the session of 1891 the defendant presented a petition to the House of Representatives; (38) the defendant was examined on oath before a Parliamentary Committee as to Horowhenua No. 2, and his evidence was taken down in writing and signed ; (39) in this evidence ths defendant admitted that Horowhenna No. 2 was held by Rangihiwinui and himself in trust for the tribe ; (40) the writing mentioned in the last two paragraphs is not in tho possession or under the control of plaintiffs; (41) the defendant has in divers letters written to the Under-Secretary for Native Affairs and to the Native Minister, and faigned by him, admitted that the lands were held in trust as stated ; (42) the letters are in possession of plaintiffs; (43) on the 21st of October, 1893, the defendant executed a document purporting to transfer 1600 acres, part of Horowhenua Noi 2, to Her Majesty the Queen, whereby he received -36000. The remaining clauses are of a technical nature, and in conclusion the plaintiffs pray that it may be declared by the Court that the lands called Horowhenua No. 2 are Held by Rangihiwinui and Kakeke in trust fer the tribe ; that an inquiry may be had as to who such persons are; that the defendant may be restrained from registering the aforesaid orders, mentioned iv paragraphs 82 and 43 ; that the defendant may bo restrained from selling, transferring, or changing the land, or any part of it, and in fact to declare the proceedings of the Native Land Court null and void.